City of Elyria v. Tress

Baird, Presiding Judge. This cause comes before the court upon the appeal of Martin E. Tress from his convictions for driving under the influence of alcohol, R.C. 4511.19(A)(1), and resisting arrest, R.C. 2921.33(A). Shortly after 11:00 p.m. on April 20, 1990, Melissa Dempsey was preparing for bed when she heard a loud noise, and felt the trailer in which she lived begin to move. When she went outside to investigate, she saw that a van had backed into the side of her trailer. She observed the appellant and another man, Michael Corn, stumbling around her yard. Dempsey was unable to determine which man had been driving the van. Both men appeared “disoriented,” and, when Dempsey approached appellant, she noticed a strong smell of alcohol about him. When Dempsey confronted the men with the damage done to her trailer, the appellant became verbally abusive. Dempsey returned to her trailer to summon the police. Appellant and Corn entered the appellant’s neighboring trailer. Police officers Michael Bigrigg and Gerald Geinke were the first to respond to Dempsey’s call. After interviewing Dempsey and observing the damage to her trailer, the officers knocked at the door of appellant’s trailer. When appellant answered the door, Bigrigg explained the nature of Dempsey’s complaint, and asked appellant if he had been driving the van. Appellant admitted he had driven the van, but denied hitting the trailer. Bigrigg noticed that appellant’s speech was slurred, that his eyes were glassy, and that his balance was poor. Bigrigg asked appellant to step outside to view the damage to the trailer, but appellant refused to do so. The officer repeated his request, and appellant again refused and began to shut his trailer door. Bigrigg stopped the door and grabbed appellant’s hand. When appellant pulled away, he and Bigrigg began scuffling on the floor of appellant’s trailer. Eventually, three police officers and a stun gun were required to subdue appellant and place him under arrest. Appellant was charged with driving under the influence of alcohol, R.C. 4511.19(A)(1), operation of a motor vehicle without reasonable control, R.C. 4511.202, resisting arrest, R.C. 2921.33(A), and disorderly conduct, R.C. 2917.-11(A)(2). Following a bench trial, appellant was acquitted of disorderly conduct and operation of a motor vehicle without reasonable control, and was convicted of driving under the influence of alcohol and resisting arrest. Tress appeals his convictions, and raises the following assignment of error: *7 Assignment of Error “The trial court erred in finding appellant guilty of driving under the influence and resisting arrest in that the findings were against the manifest weight of the evidence.” Driving Under the Influence In support of his assignment of error, appellant contends that a police officer is not permitted to make a warrantless arrest for the misdemeanor offense of driving under the influence of alcohol unless the offense is committed in the officer’s presence. Appellant further argues that this allegedly illegal arrest renders invalid his conviction for driving under the influence of alcohol. Both of appellant’s arguments are without merit. See Bucyrus v. Williams (1988), 46 Ohio App.3d 43, 45-46, 545 N.E.2d 1298, 1299-1301, and New York v. Harris (1990), 495 U.S. 14, 18, 110 S.Ct. 1640, 1643, 109 L.Ed.2d 13, 20, respectively. And, in any event, these arguments are unrelated to the issue of whether appellant’s conviction for driving under the influence of alcohol was against the manifest weight of the evidence. Although appellant presents no argument to support his claim that his conviction was against the manifest weight of the evidence, and this court is therefore not required to address this claim, App.R. 12(A), in the interest of fairness, we have reviewed the record and find no merit to this claim. In determining whether a judgment is against the manifest weight of the evidence, this court, “ * * * reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. * * * ” State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720. In the case at bar, there were no conflicts in the evidence. Appellant himself admitted to the police that he had been driving the van. Immediately after the van hit her trailer, Dempsey observed the appellant in an obviously intoxicated state. Shortly thereafter, two police officers also witnessed appellant’s obvious intoxication. Appellant’s argument is not well taken. Resisting Arrest Although appellant’s assigned error challenges the manifest weight of the evidence on his resisting arrest conviction, his argument speaks only to the legal issue of whether the arrest, upon which his resisting arrest charge was based, was lawful. This court will choose substance over form, and *8 address the issues raised in appellant’s argument rather then those raised in his assignment of error. Appellant argues that the police made a warrantless entry into his trailer for the purposes of arresting him. Therefore, he argues, his arrest was unlawful and cannot be used as the basis for a charge of resisting arrest. We agree. At trial, Bigrigg testified regarding appellant’s arrest: “ * * * I asked Mr. Tress would he please put on his shoes and step on outside, and I’ll show him the damage to the trailer. And he told me he ain’t going outside. “And I again asked him. And at that time, he attempted to shut the door. And as he attempted to shut the door, I stopped it and grabbed his hand. He pulled away. And the next thing, we were in a big confrontation, a wrestle [.sic] match, on the floor of his trailer.” Officer Geinke also testified as to the circumstances of appellant’s arrest: “At the point that he was at the door, due to his intoxicated condition and his refusal to cooperate in the accident investigation, he was placed under arrest at that time. Officer Bigrigg advised him he was under arrest. “At that time, he tried to duck back into the apartment. And I believe Officer Bigrigg was able to block the door before it was slammed on him. We went in, and he was again advised he was under arrest and to discontinue his actions. At this time, he refused to cooperate, and we had to physically restrain him and place him in custody.” It is clear from the officers’ testimony that appellant never left his trailer, and that the officers had to enter the trailer to effectuate his arrest. In doing so without a warrant, or appellant’s consent, the officers violated the Fourth Amendment to the United States Constitution. Absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639. The state does not advance any exigent circumstances justifying the officers’ entry, and we find none in the record. In a similar case, the United States Supreme Court held that no exigent circumstances existed to support a warrantless entry into an intoxicated defendant’s home where the offense consisted of a non-criminal traffic offense, where the defendant had already arrived at his home and there was no immediate or continuous pursuit from the crime scene, and where the defendant had abandoned his car, leaving little remaining threat to public safety. Welsh v. Wisconsin (1984), 466 U.S. 740, 752-753, 104 S.Ct. 2091, 2098-2100, 80 L.Ed.2d 732, 744-745. The court held that the exigent-circumstances exception is *9 generally limited to the investigation of felony offenses. Id. The court, and most lower courts addressing the issue, have refused to permit warrantless entries into the home to effectuate arrests for misdemeanor offenses. Id. Because the arrest of appellant violated the Fourth Amendment, it was an unlawful arrest. We therefore turn to the question whether appellant is permitted to resist such an unlawful arrest. R.C. 2921.33(A) provides: “No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another.” The state relies upon Columbus v. Fraley (1975), 41 Ohio St.2d 173, 70 O.O.2d 335, 324 N.E.2d 735, certiorari denied (1975), 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102, for the proposition that the above statute also prohibits resisting any unlawful arrest. In Fraley, the court announced that it was judicially abrogating the common-law rule that one may resist an unlawful arrest. Id., 41 Ohio St.2d at 180, 70 O.O.2d at 339, 324 N.E.2d at 740. However, “ * * * the Fraley pronouncements must be dicta since that court did not have the resisting arrest statute before it; rather, its ruling involved a Columbus city ordinance which did not make ‘lawful arrest’ an element of the offense. The legislature has elected to make a ‘lawful arrest’ an element of R.C. 2921.33(A). Therefore, the Fraley court abolished the common-law rule in Ohio, but the element of lawful arrest is still a part of R.C. 2921.33(A)[.]” State v. Clay (1988), 43 Ohio Misc.2d 5, 6, 539 N.E.2d 1168, 1169. See, also, Hoover v. Garfield Heights Mun. Ct. (C.A.6, 1986), 802 F.2d 168, 174, certiorari denied (1987), 480 U.S. 949, 107 S.Ct. 1610, 94 L.Ed.2d 796. We agree with the above reasoning; the Ohio statute does not prohibit resisting unlawful arrest. Because the state failed to prove beyond a reasonable doubt a necessary element of the crime of which appellant was convicted, 1. e., lawful arrest, his conviction must be reversed. In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375. Appellant’s argument is well taken. The judgment of the trial court is affirmed in part and reversed in part. The case is remanded to the trial court for further proceedings consistent with this opinion and the law. Judgment affirmed in part, reversed in part and cause remanded. Cacioppo, J., concurs. Reece, J., dissents.